The U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s ban on affirmative action, has been picked apart for the future legal implications, and the sharp language in the numerous opinions. But underlying the larger discussion of who gets to decide about matters of race—state citizens or federal judges—lurks a murky, and far more fascinating dialogue (if you can call it a dialogue at all) about how to talk about matters of race. This is not just a conversation about what the voters in Michigan thought when they passed a 2006 ballot initiative banning state institutions from using race as a factor in decision-making. It’s about a far bigger exchange, one that’s been going on for centuries: a knotty, crucial conversation about how justices tasked with making decisions about equality and political processes can talk to each other about race, history, privilege, and life experience.

The starting point for the most recent chapter of this knotty and crucial conversation is Chief Justice John Roberts’ famous getting-past-race language in a 2007 case about racial remedies and school busing, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts used that turn of phrase to both highlight his own philosophy that the Constitution must be color blind, and also to flick at the proposition that the time for overtly racial remedies to historical problems must be put behind us.

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Told, in effect, that race has no place in modern constitutional discourse despite the central role it has played in her own life, Justice Sotomayor pushes back on that formulation. Her dissent in Schuette starts from the implicit proposition that Roberts was wrong to close the door in 2007, and is wrong to do so today:“In my colleagues’ view,” she writes, “examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable.” Then she goes on to poke at Roberts with a sharp stick: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Now, Chief Justice Roberts has been called many things in his life. But there is something about being told that he is blind, clueless, and also silencing that affects him viscerally. His entire two-page concurrence in Schuette (he did not need to write anything, Anthony Kennedy wrote the controlling opinion) is a rebuke to Sotomayor; not on matters of doctrine, but on good taste and decorum in public discourse over race. It’s not just that he doesn’t like what she is saying. He doesn’t like how she’s saying it.

It’s not just that Roberts doesn’t like what Sotomayor is saying. He doesn’t like how she is saying it.

Writes Roberts: “The dissent states that ‘[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.’ And it urges that ‘[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: I do not belong here.’ But it is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent's views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Sotomayor is not content to belittle Roberts’ formulation that racism will end when we stop helping minorities. She tells him that the act of ignoring pervasive structural racism is an abdication of judicial responsibility: “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.” Then, in what has become the most controversial element of an already controversial dissent, Sotomayor goes on to explain in starkly personal terms why race didn’t stop being an issue on the day Chief Justice Roberts called it on account of a busing program in a case from Seattle. She paints a picture that looks a lot like her own life.

“Race matters,” she writes, “Race matters in part because of the long history of racial minorities being denied access to the political process. ... Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’ ”

Roberts makes a substantive point in his rebuke of Sotomayor: Racial preferences may lead minority students to suffer shame and self doubt from racial preferences and that it is not “out of touch” to suggest that affirmative action doesn’t remedy race problems. But his deeper, sharper, point is that it is bad for the national dialogue about race for jurists to accuse one another of bad faith and lack of candor. His defensiveness at having someone explaining the limits of his own understanding of racism is palpable. He feels that he has been called out, shamed, and silenced. It is not clear whether or not he understands that his horror at being condescended to, his opinion disregarded, is among the very experiences of racial injustice that Sotomayor is describing.

Justice Antonin Scalia goes even further in his concurrence, describing Sotomayor’s logic in analogizing the Michigan anti-affirmative initiative to Jim Crow as “shameful.” In his view, she has crossed the line of poor taste by suggesting that racism in America today is as pervasive and toxic as it was in the 1950s. This clash, and the language used, is as personal and pointed as it gets at the court.

One could stop here and note that this is the central tragedy of modern political—and it now appears constitutional—discourse: That totting up who is the most aggrieved and marginalized has become a proxy for any meaningful dialogue. And certainly the critiques of Sotomayor’s use of narrative and personal experience and also the annoyance at her impulse to tell the majority what it is that they fail to comprehend about racism in the United States tend to sound a lot like the sad predictable attacks deployed at her confirmation hearings. Conservatives just run her through their 2009 stereotype generator to trot out all the old clichés about her lack of intelligence, rampant emotionalism, and thuggishness. She is, according to an unsigned editorial at the NRO, “legally illiterate,” a “self-described ‘wise Latina,’ ” and a “case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law.” On Fox News, Steve Hayes of the Weekly Standard described the 58-page dissent as driven by “emotion” and “empathy.” (In case you missed it, Jon Stewart recently reminded us that being emotional is only politically powerful if you are male.)

Compare this reception of Sotomayor’s deeply personal dissent with how her colleagues talk about Thurgood Marshall’s time at the court, where his personal stories shaped their thinking on every aspect of race. Justice Anthony Kennedy (who wrote the controlling opinion in Schuette) once said of Marshall, “his stories prove that his compassion and his philosophy flow from a life and legend of struggle.” Here is Sandra Day O’Connor’s powerful account of the way Marshall shaped every conference meeting, oral argument, opinion, and dissent with his personal stories and experiences: “His was the mouth of a man who knew the silence of the anguished and gave them a voice.” She openly accepted that he shaped her worldview because he “made clear … the impact of legal rules on human lives.” Justice Byron White famously said of Marshall, “he would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our experience.”

Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.

Nobody likes to be lectured about race, and nobody likes to hear they don’t get it. Most of us have likely been on both ends of that conversation. But, at some level, the inability of certain members of the court to understand—or to be willing to listen to someone explain to them—that race continues to play a role in how Americans pursue opportunity, how they are received by others, and how they feel marginalized—is grimly ironic in the context of a case about affirmative action, a policy that was designed, by some measures, to compensate for these experiential inequities.

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except that tacit agreement is not what the plurality opinion said at all, it was very clearly NOT about whether AA is a good policy because that wasn't the question before the court and Sotomayor's very long tangent aside, the merits... More...

There is a lot that strikes me as wrongheaded in both the plurality opinion in Schuette and the dissent. The case was a mess when it arrived at the court and it’s only worse now. But the fight over affirmative action is one thing. The fight over how the court gets to talk about race—who gets to announce that the time for open talk is over, and who gets to decide that a call for honesty is “shameful?”—well, that fissure may endure at the court for a very long time.

By sheer happenstance, Marshall’s son and widow were sitting inside the courtroom on Tuesday morning as Sotomayor read her dissent. One can’t help but wonder what they thought about the tacit new agreement on the part of the Roberts majority that the best way to stop discrimination on the basis of race is to stop talking about discrimination on the basis of race.

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